We use cookies to customise content for your subscription and for analytics.If you continue to browse Lexology, we will assume that you are happy to receive all our cookies. For further information please read our Cookie Policy.

The challenger argued that the claims at issue—"Compare to Viviscal," "Supports existing hair growth from within," and "Scientifically formulated for beautiful hair," for example—were comparative or performance claims that require competent and reliable scientific evidence for support. Because Lang lacked such evidence, Lifes2Good argued the claims should be discontinued.

Lang countered that the "Compare to Viviscal" claim was simply an invitation to compare the products and "Scientifically formulated for beautiful hair" was puffery. The other claims were fully supported by clinical testing on the ingredients in the products, the advertiser said.

Considering the "Compare to Viviscal" claim, the NAD agreed with the challenger that it should be discontinued. While separate from the product performance claims, the self-regulatory body expressed concern that consumers at the point of purchase would be unaware that Viviscal has been clinically tested while the Lang product has not. "NAD shared the challenger's concern that consumers were unlikely to have the necessary information to make an informed comparison," according to the decision. "A reasonable consumer could take away the message that the Lang product and Viviscal brands are similar in type, composition and efficacy, a message not supported by any evidence in the record."

The decision also advised Lang to discontinue several product performance claims, including "Scientifically formulated to support existing hair growth" and "drug-free nutrient formula for thinning hair." The advertiser did not submit a single ingredient study that provided a reasonable basis for the "thinning hair" claim, the NAD wrote, and the evidence in the record failed to support the "scientifically formulated" claim.

Lang provided ingredient testing to back its claims but the NAD found that "the advertiser had not demonstrated that the supplementation of these nutrients in the absence of a deficiency would promote hair growth beyond a person's natural capacity."

The product name survived the self-regulatory body's scrutiny, as the record lacked any evidence of consumer confusion and "the claim 'hair nourishing supplement' is literally true in that the product contains many nutrients that are associated with normal hair maintenance and growth."

Finally, the NAD determined that the "Scientifically formulated for beautiful hair" claim met all the criteria for puffery: "'beautiful hair' is in the eye of the beholder, vague and not capable of objective measurement," the decision noted.

Why it matters: The NAD's decision provided an important reminder for advertisers that substantiate product performance claims for health products with ingredient testing. Lang submitted studies and articles on the ingredients contained in its supplements. "[W]hen making claims based on the ingredients in a product, advertisers bear the burden of demonstrating that the advertised product has the same ingredient in the dosage, formulation and route of administration as the underlying studies submitted in support of its health claims," the self-regulatory body explained. Further, in order to be considered sufficiently reliable evidence, "the submitted evidence studies must constitute competent and reliable evidence," generally defined as at least one human clinical trial that is methodologically sound and statistically significant at the 95 percent confidence level.

Related topic hubs

"Lexology is one of the few newsfeeds that I do actually look over as and when it comes in - the information is current; has good descriptive headings so I can see quickly what the articles relate to and is not too long."